An enquiry under Section 202 of Cr.P.C. is mandatory before the issuance of process in Complaints filed under Section 138 of the Negotiable Instruments Act, 1881, and the Magistrate must comply with this requirement, especially when the accused resides beyond the territorial jurisdiction of the Court.

JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for rival parties.

2. By this Writ petition, the petitioner (original accused) in a Complaint filed by respondent No.2 under Section 138 of the Negotiable Instruments Act, 1881, has approached this Court, seeking quashing and setting aside of order passed by the Sessions Court and also an order passed by the Court of Judicial Magistrate First Class, Akola, whereby process was issued in the Complaint filed by respondent No.2.

3. The short point raised in the present Petition is that the process could not have been issued by order dated 14/06/2017, by the Court of Judicial Magistrate First Class, Court No.10, Akola, for the reason that mandatory requirement under Section 202 of the Criminal Procedure Code (Cr.P.C.) was not complied with. It is contended on behalf of the petitioner that the aforesaid provision was required to be complied with for the reason that the petitioner is a resident of a place outside the jurisdiction of the Magistrate.

4. On the Revision Application filed by the petitioner, the Court of Additional Sessions Judge, Akola in judgment and order dated 02/05/2019, held that since the Magistrate had perused the Complaint and the verification statement on oath of the respondent No.2 (complainant), there appeared to be sufficient compliance of requirement of Section 202 of Cr.P.C. On this basis, the Revision Application was dismissed.

5. This Court issued notice in the present Writ Petition on 27/08/2019 and on 04/01/2021, the Petition was admitted with interim stay of further proceedings before the Magistrate.

6. The respondent No.2 is served and he has chosen not to appear before this Court. The respondent No.1 - State is represented by the learned APP.

7. Mr. P.S. Gavai, learned counsel appearing for the petitioner invited attention of this Court to the recent judgment of the Constitution Bench of the Hon'ble Supreme Court reported in AIR 2021 SC 1957 (in Re : Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881). The learned counsel relied upon paragraphs 10, 11 and 12 of the said judgment to contend that now it was authoratively held by the Hon'ble Supreme Court that enquiry under Section 202 of the Cr.P.C., was mandatory before issuance of process in Complaints filed under Section 138 of the N.I. Act. The learned counsel further relied upon judgment of this Court in the case of Satish alias Rajendra Harbans Tiwari and Ors. Vs. State of Maharashtra and Anr. 2010 CRI.L.J. 4089, wherein it has been held that perusal of the Complaint and verification statement by the Magistrate is not enough to comply with the enquiry contemplated under Section 202 of Cr.P.C. Applying the said position of law to the facts of the present case, the learned counsel appearing for the petitioner submitted that the impugned orders deserves to be set aside.

8. Mr. S.D. Sirpurkar, learned A.P.P. appearing for the respondent No.1 submitted that in the facts of the present case, the Magistrate was satisfied with the contents of the Complaint and verification statement on oath submitted by the respondent No.2 and having satisfied himself about the veracity of the claims made in the Complaint, process was issued. It was submitted that therefore, interference is not warranted. As noted above, the respondent No.2 chose not to appear before this Court, despite service of notice.

9. Section 202 of Cr.P.C. mandates that when the accused is resident of a place outside the jurisdiction of the concerned Magistrate, an enquiry as contemplated under the said provision has to be undertaken. It appears that there was some conflict in the various opinions, as to whether the said mandatory requirement under Section 202 of Cr.P.C. applied to Complaints under Section 138 of the N.I. Act. In the said judgment, the Constitution Bench of the Hon'ble Supreme Court in the case of Re : Expeditious Trial of Cases Under Section 138 of N.I. Act